List of Subheadings
- 1. Overview
- 2. Circumstances when directing commencement date is required
- 3. Meaning of ‘cumulative’ and ‘concurrent’
- 4. Operation of section 19
- 5. ‘No Gap’
- 6. Effect of incorrect application of section 19
- 7. Interaction with other sentencing principles
The content on this page was last reviewed on 10 October 2018.
Recent legislative amendments
Cumulative sentences: The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) inserts a new s 19(5)–(7) which provides additional requirements for the commencement of sentences for Commonwealth child sex offences. The new provisions provide that an order for the commencement of a federal sentence must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is or has been imposed for another Commonwealth or State or Territory registrable child sex offence. Section 19(6) provides that this requirement does not apply where the court is satisfied the sentence would still be of a severity appropriate in all the circumstances and s 19(7) imposes a requirement for reasons.
*Guidance from these amendments has not yet been incorporated into the commentary
There are two important aspects to this section:
(1) The court must, ‘by order, direct when each federal sentence commences’: Crimes Act 1914 (Cth) s 19(1), (2) and (3). (See below: 4.1 Setting a cumulative, partly cumulative or concurrent sentence)
(2) In making this order the court is to ensure that no federal sentence commences later than the ‘end of the sentences the commencement of which has already been fixed’ or ‘the last to end of those sentences’: Crimes Act 1914 (Cth) s 19(1)(b), (2) and (3)(c). (See below: 5. ‘No Gap’).
In other words, there is to be ‘no gap’ between the end of one sentence and the commencement of a federal sentence. In R v Dobie  QCA 140 Davies JA remarked (de Jersey CJ and Holmes J agreeing) at :
The intention of s 19 as a whole appears to be plainly to ensure that there is no gap between the end of a sentence which an offender is serving at the time when he or she is convicted for a federal offence and the commencement of the sentence for that federal offence.
2. Circumstances when directing commencement date is required
Section 19 does not identify when it is appropriate to set a cumulative, partly cumulative or concurrent sentence. There is no legislative enactment of the common law presumption that sentences will be served concurrently 2 in Part IB of the Crimes Act 1914 (Cth).
Rather, s 19 of the Crimes Act 1914 (Cth) is divided into three subsections which set out the different situations a court may face when seeking to set a cumulative, partly cumulative or concurrent sentence upon a federal offender.
A court may direct a federal sentence to commence so that it operates as a cumulative, partly cumulative or concurrent sentence where a person:
[C]onvicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences …
(a) a person is convicted of 2 or more federal offences at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences … 3
(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences … 4
3. Meaning of ‘cumulative’ and ‘concurrent’
Section 19 is headed ‘Cumulative, partly cumulative or concurrent sentences’ 5 but the terms ‘cumulative’ and ‘concurrent’ do not appear in the section. A court imposing a cumulative, partly cumulative or concurrent sentence for a federal offence is required by the general language of the section to direct when the federal sentence commences rather than order that the federal sentence be cumulative, partly cumulative or concurrent.
The Butterworths Concise Australian Legal Dictionary (4th ed, 2010) defines the terms as follows:
Cumulative sentence: A punishment or term of imprisonment which commences at the expiration of another punishment or term of imprisonment.
Concurrent sentence: A sentence that is served at the same time as another sentence.
The NSW and ACT sentencing regimes use the term ‘consecutive’ instead of ‘cumulative’. 7
4. Operation of section 19
4.1 Setting a cumulative, partly cumulative or concurrent sentence
A court setting a federal sentence must direct when each federal sentence commences: s 19 Crimes Act 1914 (Cth).
A court is not empowered to make an order that a ‘sentence be served cumulatively’, rather it must operate under s 19 of the Crimes Act 1914 (Cth) and fix a commencement date so that this effect is achieved. 8 For example, an order that does not specify when a federal sentence will commence will have no effect. 9
In R v Institoris  NSWCCA 8 it was established that there is no duty upon the Crown to positively seek a cumulative sentence where it considers it appropriate. The sentencing judge must turn his/her mind to whether the sentences should be concurrent or cumulative and it is for the judge to determine ‘what should be the appropriate overall sentence or how the sentences should be structured to achieve that result’. 10 The proper approach to sentencing for more than one offence is for the court to ‘fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence’. 11 This approach has been described as ‘fundamental’ 12 and ‘no matter of technicality’. 13
Similarly in DPP (Cth) v KMD  VSCA 255, Maxwell P, Weinberg and Beach JJA applied the High Court case of Johnson v The Queen  HCA 15, . Their Honours held that the ‘orthodox approach’ expounded in Johnson ‘was not to moderate [the sentences] at all but to fix appropriate sentences for the individual charges.’ 14 The Court continued stating that such approach should only be departed from where there is ‘some special feature of the case (for example, multiple victims of an offence of violence) [that] requires such a departure.’ 15
In the state sentencing case Smorhun v Devine  ACTSC 208, the Supreme Court of the Australian Capital Territory noted that the High Court’s comments in Johnson v The Queen  HCA 15,  were in relation to sentences of imprisonment, and ‘no sensible meaning can be given to the concept of concurrency in the context of multiple fines.’ 16
In applying s 19(3), the Court in DPP (Cth) v Swingler  VSCA 305 noted that setting cumulative, partly cumulative or concurrent sentences necessarily requires the court to state the date of commencement. The Court held at :
It appears that, when dealing with sentencing for multiple Commonwealth offences, while the Court may describe the overall intended effect of its orders by reference to terms such as concurrency or cumulation, as is the practice in State law, the Court is required to translate any such statement of intent into appropriate statements of commencement dates (emphasis added). 17
The Court in Rajabizadeh v The Queen  WASCA 133, in applying DPP (Cth) v AB (No 1)  SASC 112, explained at  that while it is preferable the commencement date is given expressly, it may be inferred. The Court explained that:
[W]hile an express direction in accordance with s 19(2) is preferable, the statement that the sentences were to be served cumulatively is, in substance or by implication, a direction that the sentence on the second count commences on the expiry of the sentence on the first, and so on …
4.2 Sentencing for state and federal offences
Sub-sections 19(1) and 19(3) cover circumstances where state and federal offences are to be sentenced at the same time.
As is generally understood, State sentences ordinarily run from the date on which those sentences are imposed. They can, however, be made to operate in the future, by means of orders as to cumulation as between those State sentences. Commonwealth sentences operate quite differently. They can be ordered to commence at any time in the future, provided there is no gap between the expiration of one sentence, and the commencement of another. One way or another, a commencement date must be stipulated (emphasis added).
The Court continued at  that there are three ways to deal with a sentence involving Commonwealth and state offences, but the simplest approach, and the one the court adopted, was the second: 18
How then should a judge, faced with a joint Commonwealth–State indictment of the kind filed in this case, go about sentencing an offender such as the respondent? Logically, there seem to be three possibilities, as follows:
2. The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime…(emphasis added).
4.3 Directing commencement of a federal non-parole period
It is, accordingly, clear that to set a non-parole for a period during which the offender is not serving the term of imprisonment to which the non-parole period relates results in a sentence that is not in accordance with the law.
In this case, were the Court simply to direct that the non-parole period commence at the start of the head sentence for the federal offences, this would then cause the sentence to breach the provisions of s 19(3)(d) of the Commonwealth Crimes Act, thus further creating a sentence that is not in accordance with the law (emphasis added). 19
5. ‘No Gap’
In relation to cumulative, partly cumulative and concurrent sentences there is to be no gap between sentences. The federal provision states that the court is to direct when each sentence commences, but so that no federal sentence commences later than the end of the sentences the commencement of which has already been fixed, or the last to end of those sentences: Crimes Act 1914 (Cth) s 19(1)(b), (2) and (3)(c).
The phrase ‘end of the sentences the commencement of which has already been fixed’ includes a reference to another sentence imposed at the same time as the federal sentence: Crimes Act 1914 (Cth) s 19(4).
Weinberg JA discussed in Fasciale v The Queen  VSCA 337 the task of the sentencing judge when sentencing for state and federal offences. His Honour held at  that in relation to s 19(3), the commencement date of the first Commonwealth offence must not be later than the end of the non-parole period for the state offence:
It is clear, from the language of the section, that it was enacted to ensure that, where an offender was convicted of both State and Commonwealth offences, and the commencement date of the Commonwealth offences was to be fixed at some point in the future, the sentencing judge must ensure that the first Commonwealth sentence to be served will commence not later than the end of the State non-parole period… (emphasis added).
The Court continued at  stating that the rationale of the ‘no gap’ provision is to:
[P]revent a situation arising whereby an offender is released from prison on State parole, and then finds him or herself having to be returned to prison at some later date to commence serving the Commonwealth sentence. In other words, the section is intended to avoid the creation of a ‘gap’ in incarceration, which would be undesirable. 20
5.2 Non-parole period
Similarly, there should be no gap between the end of a ‘non-parole period’ and the commencement of the federal sentence. Where a non-parole period applies for a state or territory offence ‘the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period’. 21
‘Non-parole period’ is defined in s 16(1) of the Crimes Act 1914 (Cth):
“non-parole period”, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
The clear purpose of s 19(1)(b) is to ensure that where a federal sentence is imposed on a person serving a State sentence and it is intended that the federal sentence will be served following the custodial portion of the State sentence, there will be no hiatus between release on the State sentence and the commencement of the federal sentence. Such a hiatus could occur if a federal sentence was ordered to be served on the expiry of a State sentence. If, before such expiry was reached, the offender was released on parole there would be a gap before the federal sentence could commence (emphasis added).
The Court explained the rationale for the ‘no gap’ provision at :
[T]his is because an offender released on parole is still serving the balance of that sentence in the community and the sentence would not be completed until the parole period finished. This would result in the unfortunate circumstance of an offender serving the non-parole period of a State sentence, being released on State parole, and then being returned to custody at the end of that parole period to serve any custodial component required by the federal sentence. 22
There must be a non-parole period applying for s 19(1)(b) or (3)(d) to take effect. For example, sub-ss (1)(b) and (3)(d) do not allow for a federal sentence to be backdated to the end of a non-parole period which has expired. Therefore, if there is no non-parole period applying at the time the offender is sentenced for the federal offence ss 19(1)(b) and 19(3)(d) have no application. 23
It may be noted that s 19(1)(b) [of the Crimes Act 1914 (Cth)] speaks in the present tense: “applies”. Thus it requires for its operation the existence of a non-parole period applying in respect of a State or Territory sentence at the time when a federal sentence is being imposed.
This passage was cited with approval by Wilson J in MacCormack v The Queen  QSC 49,  and adopted in Mercanti v The Queen  WASCA 120 by Hall J (McLure P and Boss JA agreeing), who held that ‘the interpretation of s 19(1)(b) expounded in Dobie appears to be correct and is consistent with the purpose of that subsection’. 24
It is unclear whether a court can direct a sentence to commence on an uncertain date. In R v Knight  QCA 277 the sentencing judge had directed the federal sentences to commence ‘upon the expiration of his incarceration for the current term of imprisonment being served’. In the Supreme Court of Queensland, Atkinson J (Muir and Fraser JJA agreeing) stated at :
It is open to doubt that a sentencing judge may direct a sentence to commence on a date that is uncertain or that is dependent upon a decision of a State administrative body.
However, the court did not make a determinative finding on the issue, as there was no provision under the relevant state parole legislation for a prisoner to be granted parole in order to commence a new sentence of imprisonment. 25
6. Effect of incorrect application of section 19
6.1 Section 19 error may result in need to resentence
The Appellant was sentenced without having regard to the fact that two distinct sentencing regimes applied. The sentences imposed upon the Appellant were not authorised by law. Those sentences must be recast in any event. There were three material misstatements of the maximum penalties applicable to the offences to which the Appellant was found guilty. The trial judge, in having regard to the principle of totality, must have applied it against a mistaken statutory background (emphasis added).
In [Edwin], the Court of Appeal was dealing with a sentencing exercise that, it found, had been infected by various errors. Not only had a single non-parole period been set for territory and federal sentences (in breach of s 19AJ) but also the federal sentences had, in breach of s 19(3)(d) of the Crimes Act, been set down to commence more than a year after the end of that specified non-parole period. As well, it seemed that the sentencing judge had been mistaken about the maximum penalties for three of the offences …
It is unsurprising that the Court of Appeal formed the view, having regard to the multiple errors mentioned, that the entire sentencing exercise needed to be re-done (emphasis added). 26
6.2 Section 19 and section 19AH
Failure to comply fully with the Crimes Act 1914 (Cth) in respect to fixing non-parole periods or making recognizance release orders does not affect the validity of the sentence: Crimes Act 1914 (Cth) s 19AH(1).
The Court in R v TW (No 2)  ACTCA 37 considered whether s 19AH could rectify the sentencing judge’s error under s 19(3). Refshauge, Penfold and Gilmour JJ held at  that s 19AH was not sufficient to resolve this error:
While the relationship between the head sentence and the non-parole period of the sentence for the federal offences imposed on TW bespeaks of error, a re-fixing of the non-parole period to start at the same time as the sentence of imprisonment will not resolve the problem for it will not address the breach of s 19(3)(d) of the Commonwealth Crimes Act that would then result. Thus, s 19AH cannot provide a solution to the error.
I am satisfied that these errors, either individually or a combination, have the effect that the sentencing discretion in respect of all of the actual sentences of imprisonment imposed by the magistrate, has miscarried. The sentences so affected include the activated suspended sentence. It is true that Crimes Act, s 19AH provides a process whereby, on application, a court which has failed to make, or properly make, a recognizance release order can, in effect, correct that mistake upon application by the persons nominated in the section. However, the section is not exhaustive, and an error in compliance with the Act can still constitute a basis for review … 27
7. Interaction with other sentencing principles
To be consistent with general approaches to sentencing, a court in determining how the sentence will be structured must have regard to the sentencing principles of totality, 28 double punishment and the one transaction rule. There is overlap in the application of these principles and an appropriate sentence may be reached in a number of ways. In Johnson v The Queen  HCA 15, , Gleeson CJ cited the following passage of Wells J in Attorney-General v Tichy (1982) 30 SASR 84, 92-3:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively… What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been found guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient … (emphasis added). 29
- Prior to the introduction of Part IB of the Crimes Act 1914 (Cth) federal sentences could not be partly cumulative upon other sentences: Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 12; see R v Rumpf (1987) 29 A Crim R 64; Re R v Hillsley (1992) 34 FCR 148, –. ↩
- There is a common law presumption that sentences will be served concurrently unless otherwise ordered: see Longford  3 NSWR 276, 278. See also J v ACT  ACTSC 170 – (Refshauge J); R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 705–7, cited in Johnson v The Queen  HCA 15, . This presumption has been reflected in some state and territory sentencing legislation: see, eg, Sentencing Act 1991 (Vic) s 16(1); Sentencing Act 1995 (WA) s 88(2); Crimes (Sentencing Act) 2005 (ACT) s 71. However it is not reflected in the Crimes Act 1914 (Cth). ↩
- Setting an aggregate sentence may be possible, see Multiple or Continuing Offences. ↩
- Setting an aggregate sentence may be possible if permitted under state or territory legislation, see Multiple or Continuing Offences. ↩
- All material from and including the first section of an Act to the end of the Act is part of the Act: Acts Interpretation Act 1901 (Cth) s 13(1). ↩
- For examples of use of these terms in the federal context, see El Rakhawy v The Queen  WASCA 209,  (Hall J, McLure P and Buss JA agreeing); R v Nagy (1991) 57 A Crim R 64, 77–8 (McGarvie J, Crockett and Phillips JJ agreeing); R v Daswani  QCA 167 – (Jerrard JA). ↩
- Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4, div 2; Crimes (Sentencing) Act 2005 (ACT) ch 5, pt 5.3. See further Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [12.7, 12.12]. ↩
- See O’Brien (1991) 57 A Crim R 80, 87 cited in Johnson v The Queen  HCA 15, . ↩
- R v Daswani  QCA 167, . See also R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991); Mercanti v The Queen  WASCA 120, . ↩
- R v Institoris  NSWCCA 8,  (Howie J, Mason P agreeing). ↩
- Pearce v The Queen  HCA 57,  (McHugh, Hayne and Callinan JJ). Considered in Priovolidis v The Queen  NSWCCA 201, ; R v Xiao  NSWSC 240, . Applied in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2)  FCA 557, ; Lamis v The Queen  NSWCCA 274, ; R v Martin  NSWCCA 283, , . Applied in state sentencing cases Elphick v Jenkins  ACTSC 142,  Ghoubriel v The Queen  ACTCA 66, ; Irving v Head  ACTSC 37, . ↩
- R v AEM Snr  NSWCCA 58,  (state sentencing case). ↩
- R v Carr  NSWCCA 434,  (Howie J, Levine and Hidden JJ agreeing). ↩
- DPP (Cth) v KMD  VSCA 255, . Affirmed in DPP (Cth) v Swingler  VSCA 305, . Johnson v The Queen  HCA 15,  has been applied in state sentencing case R v Thornton  NSWCCA 94, –. See also state sentencing cases Gillard v The Queen  ACTCA 50, ; Soames v The Queen  NSWCCA 158, . ↩
- DPP (Cth) v KMD  VSCA 255, . ↩
- Smorhun v Devine  ACTSC 208, . ↩
- For an example of how commencement dates may be articulated, see DPP (Cth) v Swingler  VSCA 305, –. ↩
- DPP (Cth) v Swingler  VSCA 305, . ↩
- The Court went on to correct the error through the application of s 61 of the Crimes (Sentencing Act) 2005 (ACT) pursuant to s 68 of the Judiciary Act 1903 (Cth). This allowed the Court to re-open the sentence to correct the error. See also R v Eliadis  ACTSC 193 where the Court held at  that s 19(3)(d) did not preclude ‘a federal sentence from commencing before the end of a non-parole period.’ See further 5.2 Non-parole period. ↩
- Affirmed in R v Monaghan  ACTSC 278,  in relation to s 19(1). ↩
- Crimes Act 1914 (Cth) s 19(1)(b) and (3)(d) (emphasis added). ↩
- Affirmed in federal sentencing case R v Thorn  ACTSC 217, . ↩
- R v Dobie  QCA 140, . ↩
- Mercanti v The Queen  WASCA 120, . ↩
- R v Knight  QCA 277, . ↩
- See further Roncevic v Boxx  ACTSC 53, –. ↩
- See further Adams v The State of Western Australia  WASCA 191, . ↩
- Pearce v The Queen  HCA 57,  (McHugh, Hayne and Callinan JJ). Considered in Priovolidis v The Queen  NSWCCA 201, . ↩
- The last sentence in this above passage is a description of the common law ‘one transaction rule’. Affirmed in ACCC v Cement Australia Pty Ltd  FCA 453, ; ASIC v Kobelt  FCA 387, ; and state sentencing case Gillard v The Queen  ACTCA 50, . ↩